Googlegate II: The Evidence DOJ Made Google Criminal Case Go Away

The FTC’s politically messy closure of the FTC-Google antitrust investigation in 2013, chronicled in “Googlegate: the FTC Cover-up Evidence Piles Up,” is not the only major Federal investigation into Google’s business practices that Google’s political influence appears to have made go away in 2013.

The DOJ let a criminal non-prosecution agreement (NPA) with Google lapse very quietly on August 19, 2013, despite public urging and evidence from State Attorneys General and others that Google was continuing to aid and abet criminal activity prohibited by the DOJ-Google criminal NPA. (On August 8th 2013, I submitted to the DOJ documentation entitled: “The public evidence Google has violated the DOJ-Google criminal non-prosecution agreement.”)

This additional evidence of a pattern of Google apparently using political influence to thwart the impartial administration of justice is highly-relevant to three current investigations into Google.

First, Google has sued in Federal Court to shut down a Mississippi State Attorney General subpoena and investigation of ongoing Google advertising behavior that is very similar to what the DOJ found criminal in 2011. Second, the Senate Antitrust Subcommittee reportedly will conduct oversight into how the FTC closed its Google search bias investigation. Third, the European Commission is investigating Google’s competition, privacy, copyright, and tax, business practices.

A. Summary of the Politically Messy Closure of the DOJ-Google criminal NPA

Especially when the DOJ investigation of Google wrongdoing apparently focused on Google sordid drug trafficking from obviously illegal websites in Mexico, yet the NPA has no mention of Mexico at all, but has 27 mentions of “Canada” or “Canadian online pharmacies.”

Apparently, as the evidence below indicates, the DOJ helped Google minimize the most embarrassing and brand-damaging parts of Google’s criminal behavior and characterized it much more benignly as suggesting Americans were getting cheaper prescription drugs from “Canadian online pharmacies.”

Consider the 2012 WSJ front page story: “Con artist starred in sting that cost Google millions,” which chronicles the genesis of the investigation of Google’s advertising practices. In 2008, a con artist arrested by the Feds told prosecutors that Google aided and abetted his criminal activity saying “it was very obvious to Google that my [illegal] website was not a licensed pharmacy.”

The Feds set up a four month sting operation where Federal agents set up www.SportsDrugs.net and designed it to appear “as if a Mexican drug lord had built a website to sell HGH and steroids.”

According to the WSJ story, “Google's ad team in Mexico approved the site, so U.S. consumers searching for "RU 486" would see an ad for the site. Google ad executives allowed the agents to add the phrase "no prescription needed."”

Apparently, the Feds wanted to see if Google would aid and abet drug trafficking from a country notorious for drug trafficking.

The WSJ chronicle continued: “By the end of the operation in mid-2009, agents were buying Google ads for sites purportedly selling such prescription-only narcotics as oxycodone and hydrocodone. Agents also got Google's sales office in China to approve a site selling Prozac and Valium to U.S. customers without a prescription.”

Why would the DOJ’s NPA mention no other countries than the U.S. or Canada, when the Google ad executives in Mexico and China were caught in the Fed sting?

What would be the impartial judicial prosecutorial discretion rationale to totally ignore at least Google’s Mexico and China ad executives’ criminal behavior, and throw the whole book at only the Google Canadian operation?

This contributes to the appearance of a DOJ-Google political deal rather than an impartial judicially-driven NPA.

Apparently, part of the political reason and benefit of focusing only on Canadian online pharmacies at that time was the notion that Americans could get their drug prescriptions filled more cheaply in Canada than in the U.S.

Thus the apparent Google PR benefit of repeatedly having the NPA mention only “Canadian online pharmacies” is that the public has a benign impression of “Canada” and “pharmacies,” and would have a bad impression of what Google actually did, which was knowingly helping criminals market and sell illegal drugs from Mexico and China to Americans.

Adding to the political nature of this settlement is that while Google was negotiating this criminal NPA with the Justice Department Google was publicly representing itself as being proactive and cooperative in combating counterfeit drugs while also representing itself as vigilant in fighting “rogue pharmacies.”

2. In the NPA, DOJ/Google apparently misrepresented Canada as only source of Google’s ill-gotten gains.

The NPA states: “The Government and the Company estimate that the total proceeds to the Company and Canadian online pharmacy advertisers generated from the advertising and sale of controlled prescription drugs by Canadian online pharmacies that advertised through the Company’s AdWords program was approximately $500 million.”

Apparently this is a DOJ/Google political compromise and joint misrepresentation, because it suggests that Google’s only illegal activity that generated any ill-gotten gains that Google legally needed to forfeit to the government under the NPA, occurred only via Canada, and not via any other country in the world, like Mexico and China, which the DOJ’s investigation reportedly implicated.

This appears to be a political deal of what Google would accept, i.e. it was willing to pay $500 million to settle, but only if the settlement was publicly characterized as exclusively a more benign Canadian online pharmacy problem.

The apparent problem for the DOJ here is that their investigation reportedly found no need for any penalty for Google illegal behavior in any country other than Canada, when in another part of the NPA Google itself acknowledges it has an illegal problem in other countries than Canada: “Company policy now forbids accepting advertisements from pharmacies located in Canada, or elsewhere outside the United States, to run in the United States on AdWords.”

In other words, how is it in the public interest for the DOJ to agree that the world’s largest advertising broker in the world, does not have to admit, or be held accountable for, illegal activities the DOJ reportedly knows that Google did in countries other than Canada?

Very simply why did the DOJ agree to represent to the public that Google only had a Canada illegal problem and not a potentially worldwide illegal problem, when it knew that to not be true from its investigation?

3. DOJ showed little interest in ensuring Google’s compliance with the terms of the NPA.

The following are excerpts of Precursor’s August 8, 2013 documentation submitted to the DOJ entitled: “The public evidence Google has violated the DOJ-Google criminal non-prosecution agreement.”

“The public evidence strongly indicates that Google broadly and repeatedly violated the main going-forward remediation requirement in the NPA: to have a “comprehensive compliance and ethics program, and policies, procedures and technological tools designed to detect and prevent violations of these laws and to ensure compliance with internal Company policies and procedures.”

Sadly, the public evidence shows that the NPA did not deter more Google criminal activity because:

State Attorneys General publicly charged Google continued to aid and abet criminal activity in violation of the NPA;

State Attorneys General investigators easily found evidence of continued Google criminal advertising on YouTube;

Google had been found by the Federal Government to have violated five additional laws during the NPA probation period;

Google had spurned several obvious, common sense, measures that would help prevent more criminal activity on Google;

At the 2013 annual meeting of the National Association of Attorneys General, Mississippi Attorney General Jim Hood presented evidence and charged that “Google is aiding and abetting criminal activity and putting consumers at risk”.

Mississippi AG Jim Hood’s press release said: He “believes Google breached this agreement” (NPA); and “he would provide the Department of Justice with evidence of drug purchases his investigators made… after the DOJ entered an agreement to not prosecute Google for the same conduct.”

Nebraska AG Jon Bruning’s press release said: “Google stands to make money from ads running in conjunction with instructional videos on everything from illegally purchasing prescription drugs and making fraudulent passports to promoting human trafficking and terrorist propaganda.”“I’m deeply disappointed with Google’s lackadaisical attitude toward Internet safety and consumer protection.”“The company should be held accountable for profiting from a platform that perpetuates criminal activity.”

Why would State AGs still be able to easily find Google advertising for illegal import of prescription drugs without a prescription, and other illegal activities like forged official documents, human trafficking, counterfeit goods, piracy etc.?

See AG presentations at the recent National Association of Attorneys General meeting on Google profiting from criminal activity like advertising for illegal drugs -- here.

Why would the Digital Citizens Alliance be able to: Conduct a YouTube search for “buy drugs without a prescription” and get 38,200 results? Or easily find ads for illegal drugs from Canada? (The NPA’s focus) See the Digital Citizens Alliance report: “Google & YouTube and Evil Doers: Too close for Comfort.”

Google has violated five additional laws during the NPA: 2011-2013. Wouldn’t a legitimate “comprehensive compliance” program to “detect and prevent violations” of law be expected to actually detect and prevent widespread violations of federal laws?

DOJ: Google Illegally abused Standards Essential Patents (SEP) in 2012 requiring 2013 FTC enforcement after the DOJexplicitly warned Google not to abuse SEPs when it approved the Google-Motorola transaction and specifically noted at that time that Google’s commitments to not illegally abuse SEPs were “ambiguous.”

FTC: Violated FTC-Google-Buzz non-prosecution agreement in 2012 and paid record $22.5m fine with no admission of wrongdoing for deceptively and secretly bypassing Apple Safari browser consumer privacy protections in order to place advertising cookies in violation of the 2011 FTC-Google-Buzz NPA.

U.S. Treasury Department: shut down 85 online mortgage scams that in late 2011 were using Google AdWords to run ads making fraudulent claims to desperate homeowners hoping to avoid foreclosures.

Federal Communications Commission: “the FCC fined Google $25k in 2012 for willfully and repeatedly violating an FCC enforcement directive” and for “impeding and delaying” its Street View wiretapping investigation, and preventing the FCC from being able to determine if Google violated wiretapping law or not.

No Google Play curation prevention: Google’s deliberate policy to not approve apps before the public is exposed to them in Google’s app store means Google is making no compliance attempt to “detect and prevent” known avenues of criminal activity on Google Play in violation of Google’s NPA compliance commitment.

Google’s company policy to not screen or filter for criminal apps is an open invitation and welcome sign for scammers and criminals to prey on Google’s tens of millions of Google Play customers. A recent Symantec study found that the Google Play store is plagued with scam apps. This is oneofmanyreports of Google Play attracting criminal apps.Google’s free open door policy enables dominant scale fastest; it does not protect users.

Given Google’s knowledge that Google Play attracts broad criminal activity, and its refusal to not involve people in approving apps to better detect and prevent them shows a reckless disregard for the public’s safety, much like Google’s willful blindness to illegal drug advertising was per the NPA.

No Google AdWords Quality Score prevention: Where Google does use humans to rate the “quality” of sites for AdWords advertising purposes, Google still does not try and detect or prevent criminal advertising activity per the NPA.

As part of Google’s efforts to improve the quality of its ads, Google recently updated its policy of how its human raters evaluate websites for “quality.” It is remarkable that this key management quality control process deliberately excludes trying “to detect or prevent” Google ads for criminal activity when they committed to do so in the NPA.

Rejected pedophile warning system: Google deliberately rejected a criminal prevention practice; one which would flash cautionary messages when people search for obscene material on children using certain obvious keywords.

Microsoft & Yahoo have decided per Business Insider to “flash a message when specific search terms were entered, stating: “Warning Child Abuse material is illegal,”” a prevention best practice experts predict could cut such traffic by half. Again Google deliberately decided against prevention.

Since Google has long programmed search auto-complete to not encourage some searches for child pornography and Nazi hate material, it is inexplicable that Google did not program search auto-complete to prevent obvious NPA violations like: “buy oxycontin without a prescription.”

With trillions of searches and an easily detectable finite number of search terms indicating criminal intent, Google could easily prevent search auto-complete algorithmically from effectively auto-suggesting search results for criminal activity that other users searched for.

In a 6-18-13 blog post Google admitted “some auto-complete entries may include phrases that potentially relate to rogue pharmacies.” 22 months into the NPA, Why is Google still “evaluating how to address this issue” when they already know how to fix it for child pornography?

Disallows advertiser control over ad placements:One of the most logical and obvious ways to detect and prevent advertising for criminal activities would be to enlist the front-line defense of enabling advertisers to pre-determine what kind of sites they do not want their ads served to.

If Google was serious about comprehensively complying with the NPA commitment to detect and prevent advertising for criminal activities, why does Google prevent its advertiser clients from protecting themselves and users from the advertising promotion of criminal sites?

4. State Attorneys General continue to press Google to stop advertising illegally -- without DOJ help.

Just before Christmas, Google filed a highly-unusual, and exceptionally-aggressive, lawsuit that asked a Federal Court to issue a restraining order to preemptively shut down a broad and ongoing State Attorney Generals law enforcement investigation into Google’s alleged willful blindness to advertising, and profiting from, well-known, recurring, illegal activities on Google’s platform.

Attorneys General from nine states filed amicus briefs in support of states’ authority to investigate Google’s violations of state law (Arizona, Connecticut, Illinois, Kentucky, Maryland, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont and Washington).

In March, Federal District Judge Wingate granted Google’s request for a temporary injunction against the Attorneys General subpoena. Mississippi Attorney General then appealed Judge Wingate’s temporary injunction to the Fifth Circuit Court of Appeals.

The DOJ’s silence here is deafening and indicative.

It is telling and relevant like the famous Sherlock Holmes deduction of “the dog that did not bark.”

In that case, Sherlock Holmes deduced that since a well-known vigilant guard dog was not heard to bark an alarm on the fateful night of his owner’s murder, the dog must have been friendly with the killer.

The DOJ’s lack of support of its fellow Attorneys General pursuit of justice, combined with its own lack of Google compliance vigilance over the last few years, leads one to conclude, like Sherlock Holmes would, that DOJ is too friendly with Google to impartially protect the public.